Child Protection, Tourism and normative answers

Child Protection, Tourism and normative answers
By Gonzalo Casanova Ferro

Introducing the issue
The exploitation of human beings in any form,
particularly sexual, especially when applied to children,
conflicts with the fundamental aims of tourism
and is the negation of tourism.
Art. 2, Section 3, Global Code of Ethics for Tourism

The OAS has just incorporated to its scheme of work 2010/2012 the Argentinean initiative of tending to penalize the user or consumer of the exploitation of persons.
On the occasion of the 39th Council´s Meeting of the MERCOSUR the presidents of the party states issued a joint statement in which (among other things) they highlighted the importance of interchanging experiences regarding protection against all forms of exploitation, in particular labor and sexual; apart from expressing their approval of the subscription of the “Buenos Aires declaration on trafficking in persons aiming at any kind of exploitation”.
As it can be clearly seen, there is an evident state policy and a regional tendency as regards the protection of human rights, which implies a logical correlation concerning the censure of any kind of exploitation.
It is not possible to consider the problem of sexual exploitation of children (within any time or scope) but as part of a greater and more complex phenomenon, which is human exploitation. Without prejudice to this, if what we expect is to part from a positive framing, it can also be faced as another challenge to the legal system of child protection, an issue we will go further into once we formulate the answers to this criminal phenomenon.
We shall here take the first statement which will allow us to consider a couple of difficulties when the time comes to deal with the problem either in the national or the international field:
A) On the one hand, it is necessary to highlight that this phenomenon (exploitation) is obviously preexisting to tourism development, and where its side of sexual exploitation of children barely constitutes the tip of the iceberg which cuts through several dimensions; reason why the normative which ponders it is often generic and divided up into several regulations. (Generally modifying or incorporating types to the Criminal Code of each country; such is the case of El Salvador – by Decree 210/03 – Panama – by Law 16/04 - or Guatemala – by Decree 14/05)
Whereas in Argentina, the issue is dealt with from a variety of approaches which contemplate the double dimension: on one hand, the rights protection[1] and on the other hand, exploitation (labor, sexual, and trade, trafficking and sale of children and adolescents[2]). Without prejudice to care for denominations, we will avoid stigmatizing the sector associating it to an illicit activity.
In other cases when the political will, the public pressure or the different NGOs which deal with the issue have promoted a specific normative, this is focused on a single legal body that shall be interpreted and read in harmony with the rest of the normative system. (Such cases as Costa Rica – law 7899/99 – or Colombia – law 679/01)
B) On the other hand, it is also clear that the scenery of this crime or trials could take place in several spaces: the intimacy of a home, a town, an educational institution or as it is quite clear, in the tourism field. And although in the latter there is censure by the sector, which understands the disvalue contradicting the essential Human Rights, and the very meaning of the touristic activity. The sentence is amplified when Tourism constitutes not only the scenery, but when in addition unlawfulness is incorporated to the same offer, i.e. when a destination, an operator, a hotel or any type of provider promotes themselves and trade from the sexual exploitation of children.

With no ratified international instruments and second-order international institutions dismissed with reference to tourism[3], we shall then start from the conceptualization of the issue; highlighting four possible institutional or conceptual views: from Security, the CSR[4], the ILO [5] and the WTO[6].
We shall later determine at national level the double juridical frame where these questions are introduced (Crime Persecution and Punishment and Child Protection), either from the normative or from the institutional aspects. We will especially bring up the three founding Congresses summoned by the UNO and the OAS.
Afterwards, we shall consider which have been the legislative proposals, evaluating and summarizing each of them.
And finally, we shall go through the contents of the public policy which attempts, from the tourism sector, to give an answer to such a complex issue.
One last remark: all through this work and according to the most internationally acceptable criteria, whenever we use the term “childhood” or “adolescence” we will mean any physical person under 18[7], without prejudice to Art. 127 from the Civil Code considering the category “Adult Children” (range 14-21 years old).

Conceptual Approaches
Subject to the case, what do international instruments say about sexual exploitation of children regarding tourism? The generalized expression is summed up in three acronyms according to the body or the time of the document: CSA[8], CSEC[9] or CSECA[10].
Nevertheless, it has not always been a univocal concept. In the Stockholm Declaration of 1996 it was defined as: “sexual abuse by the adult and remuneration in cash or kind to the child or a third person or persons. The child is treated as a sexual object and as a commercial object”. Notice that the special emphasis (and the weakness) of this concept is placed on the intermediation (which could not exist).
Years later (2004), at the Meeting after the Second World Congress against CSEC it was redefined as: “the use of girls and boys in sexual activities remunerated in cash or in kind, and also pornography, the trafficking of girls, boys and adolescents for the sex trade”. It is worth mentioning that the figure of the intermediary was suppressed, not that they do not deserve to be sanctioned; but in order to provide with a broader and much more generic concept of a complex reality with a multiplicity of possibilities and actors.
In the field of the MERCOSUR, already in 2006 and within the PWF (permanent working group) called Niñ@sur, a different approach was proposed, splitting each concept into:
Trafficking: “the recruitment, transportation, transfer, harboring or receipt of underage persons, inside or outside national territory, for the purpose of exploitation…”
Sale: “any act or transaction whereby the child or adolescent is transferred by a person or group of persons to another for remuneration or any other consideration”.
Sexual Exploitation: “the promotion, supply or utilization of underage persons in sexual activities in exchange for remuneration or any other kind of retribution or promise of remuneration”.
Sexual abuse: “the realization of sex or lecherous acts by means of violence, threat, coercive abuse or intimidating behavior in a subordination, authority or power relationship, or taking advantage of the victim´s not being able to freely consent for the action”
Child Pornography: “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes…”
Notice then that although clarity is achieved, the tendency to segregate may lead to a point where the phenomenon we are trying to describe fades out. So far, regardlessly of the evolution of the definition, there are several predominant approaches nowadays. Let us point out two conceptual and two institutional approaches, by way of example:
Security:
The definitions that set the basis for security spring from normative and sociological criteria. Sexual abuse of children is seen as part of a much more complex network which always goes hand in hand with unlawful assembly and overlapped offences which become a threat for the community´s security. In this context, children are only the top of the iceberg which deserves to be dismantled applying all the severity of the law.
Corporate Social Responsibility:
The varied interpretative spectrum of the CSR which ranges from the will to recycle paper used in a company to performing community labor which has nothing to do with the aim of any company, allows to visualize the issue as strictly sociological, and therefore, to respond to it from the intention to sensitize and to train the sector. Its purpose is that any employee or manager may be able to detect any anomaly where a child may be involved and therefore know what to do about it.
ILO:
Logically, this body starts from a conception which subsumes sexual abuse as a completely disvalued way of child labor[11]. The main measure, adopted in 1999 by the “Convention 182 concerning the prohibition and immediate action for the elimination of the worst ways of child labor” by means of which the States Party commit to define criminally some crimes of sexual exploitation of children in the domestic law, is a clear expression of a concept likely to be formulated with the best intention, though widely discussed. On the other hand, also in the frame of the “International Program for the Eradication of Child Labor”, actions have been carried out regarding the sexual exploitation of children.
WLO:
The WLO combines several ideas starting from a positive formulation: “The protection of children…” is the first term of the equation; against “…the exploitation in travels and tourism”. Thus outlined, two aspects must be highlighted. First, it is about any kind of exploitation (labor, psychological, etc. and especially sexual). And second, it can take place in a tourist travel or not. The very comprehensiveness of the definition allows the possibility to set much wider strategies and actions.



















Legal frame
National
Some authors have dealt with the issue in relation to minority and right splitting it into what happened in the boundaries of Family Law and the Juvenile Court, assuming that in the latter proceedings had acquired a distortive arbitrariness of the warranty settlement and that therefore they demanded a reform which would crystallize in law 26.061[12]. It is said, then, that after the “tutelage” vision of childhood came the “integral protection” obviously influenced by the Convention on the Rights of the Children and Adolescents. Nevertheless, the regulation as well as its regulatory decree (1293/05) has been subject to severe observations. After setting this clear, let us say that the legal network of child protection is reflected in this chart:

National Regulations
Title
National Constitution Art. 75 subsection 22
Convention on the Rights of the Child
Criminal Code and supplementary regulations
Crimes: Abuse and sexual violence, of recruitment or harboring of a person for the purpose of impairing their sexual identity, corruption of children, prostitution, pornography, people trade, sex abuse in the frame of international crimes
Criminal Procedural Rules of the Nation
Rules: Related to testimonial declaration of children, to the acknowledgement of places or things in which children are involved.
Law 25.179/99
Approval of the Inter- American Convention on International Trade in Children adopted in Mexico
Law 25.763/03
Approval of the Protocol regarding the sale of children, child prostitution and exploitation of children in pornography, complement to the United Nations Convention on the Rights of Children
Law 26.061/05
Integral Protection of the Rights of Children and adolescents
Ministry of the Interior Decree 314/06
Issuing of the Program “Victims against violence”
Ministry of Justice and Security and Human Rights Decree /07
Program of prevention of the trading in persons and aid to the victims. Goals.
Law 26.364/08
Prevention and punishment on the trade in persons and aid to the victims

Notice some examples to the local regulations where, or words to that effect, the theory of integral protection is fully summarized.

Local
Local Regulation[13]
Title
CABA
Law 114 and 2443/07
Integral Protection of the Rights of Children and Adolescents of Ciudad Autónoma de Buenos Aires
Eradication of the commercial sexual exploitation of children and adolescents
Bs. As. Law 12.607
Integral Protection of the Rights of Children and Youth of Buenos Aires province
Chubut Law 4.347
Integral Protection of the Child, Adolescents and the Family of Chubut Province
Mendoza Law 6.354
Integral Protection of Children and Adolescents
Neuquén Law 2.302
Integral Protection
Salta Law 7.039/99
Integral Protection of the Child



International
In this same sense and tightly linked to the issue we are dealing with, Argentina has ratified the following international Instruments:
International Bodies
Title
UNO
· Agreement for the repression of the trade in persons and the exploitation of prostitution (GA-UNO, 1949)
· Convention on the elimination of any kind of discrimination against women (GA-UNO 1979)
· Convention on the Rights of the Child (GA-ONU, 1989)
· Statute of the International Criminal Court (Procedural Code-ONU, 1998)
· Optional Protocol to the Convention on the Elimination of all forms of discrimination against women (1999)
· Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (GA-UNO, 2000)
· UN Convention against transnational organized crime (GA-UNO, 2000)
· Protocol to prevent, suppress and punish trafficking in persons, especially women and children, which supplementing the UN Convention against transnational organized crime (GA-UNO, 2000)
ILO
· Convention182 on the prohibition and immediate action for the elimination of the worst forms of child labor (ILO-IPEC 1999)
OAS
· Inter-American Convention on the International Trade in Children (GA-OAS, 1994)
· Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (GA-OAS, 1994)
MERCOSUR
(Common Market of the Southern Cone)
· Agreement against the illegal trade in migrants among the State Parties of MERCOSUR (2004)
· Agreement against the illegal trade in migrants among the State Parties of MERCOSUR, Bolivia and Chile (2004)

Institutional Frame
The next question would then be: Which is the institutional network and what initiatives have been developed in order to protect the underage?
v Federal Council of Childhood, Adolescence and Family (FCCAF) [14]

It is a federal body specialized in minority and family issues of the provincial
states, of Ciudad Autónoma de Buenos Aires, and of the NSCAF , which is in
charge of designing public policies on minority and family, especially
infants and adolescents protection as victims of crimes (such as trade, traffic, or
sexual exploitation and child pornography; migration issues and child labor,
among others).

v Ministry of Social and Environmental Development. National Secretary
of Childhood, Adolescence and Family (NSCAF)

This National Secretary is the body specialized in the rights of
children and adolescents of the National Executive Power and the rector
body of related public policies. Although by means of Decree 416/06 it
set its dependence to the National Ministry of Social Development, it is a
body with full autonomy since it relies on an autonomous budget and a
presiding member of the National Council of Coordination of Social
Policies, an institutional area where dependencies with ministerial ranks
participate. Finally, it integrates and presides the Federal Council of
Childhood, Adolescence and Family (FCCAF).
Among its main functions, it provides the report introduced in art. 44 of the
Convention on the Rights of Children, and together with FCCAF, the
National Plan for Action in minority issues.
Specifically regarding the sexual exploitation of children, let us point out:
- The 2008 report made under the art.44 terms of the Convention on the Rights of Children contains a special chapter devoted to this issue.[15]
- The development of an Action Program for the prevention and struggle against children sexual exploitation and trade in the area of the Triple Frontier, endorsing an Agreement of Cooperation among Argentina, Brazil and Paraguay in order to articulate struggling actions against sexual exploitation of children in this area. Likewise, a Protocol to Common Intervention was devised for sexual exploitation and child labor victims in the same area, designing a campaign of common communication in Spanish, Portuguese and Guarani.
- Cooperation with the damaged, required by the Victim´s Aid Office of the National General Attorney´s Office (VAO) articulated with the International Migration Organization (IMO).

v Ministry of Justice, Security and Human Rights
The main programs and initiatives for the prevention and struggle against the sexual exploitation of children and trade in persons carried out in the boundaries of this office are the following:
- Program for the Prevention of Trade in Persons and aid to their Victims.
- Rescue Office and Escort to the Persons Damaged by the Trade.
- National Registry Office of Information on Missing Underage Persons of the National Program for the Prevention of Children Recruitment and Traffic and the Crimes against their Identity of the Human Rights Office.
- Special unit for the promotion of the eradication of sexual exploitation of children and adolescents of the Human Rights Office.
- Program “Victims against Violence”.
- National Program for the prevention and eradication of the trade in persons.
- Specific units for the prevention and investigation of crime against trade in persons in the security forces.
- Help center for the victims of sexual violence of the PFA (Federal Police of Argentina)
- Studies

v Ministry of Labor, Employment and Social Security

The following initiatives stand out:
- Light of Infancy Program to prevent and eradicate the commercial sexual exploitation of children (CSEC)
- National Committee for the eradication of child labor (NCECL)


v National General Attorney´s Office

- Prosecutor´s Office for the Investigation of Crimes against the Sexual Integrity and Child Prostitution, another one for the Investigation of Extortive Recruiting and Trade in Persons
- Council of integral aid to the victim of the crime
- Specific instructions to the prosecutors on the investigation of sexual exploitation and trade in persons crimes; and on the protection of victims or underage witnesses in the criminal proceedings
- Agreement on Cooperation between the National General Attorney´s Office and the International Migration Organization (IMO) regarding the trade in persons (2008)
- Agreement on Cooperation between the National General Attorney´s Office and the National Migration Body regarding migration (2008)
- Letter of Commitment in favor of the rights of children and adolescents as an object of commercial sexual exploitation (2000) and the Action Plan in favor of the Rights of Children as object of commercial sexual exploitation (2000)
- Program of Investigation of crimes related to the sexual exploitation of children and adolescents via Internet (2001)

v National Ministry of Tourism

The activities carried out regarding sexual exploitation in tourism are:
- Liable Tourism and Infancy Program
- National Committee of the Code of Conduct against the Sexual Exploitation of Children and Adolescents in Travels and Tourism


World Congresses
1) First World Congress against Commercial Sexual Exploitation of Children (Stockholm, 1996): has given birth to the Stockholm Declaration, by means of which the participating States have committed, among other things, to promulgate the criminal character of infant sexual exploitation and other forms of sexual exploitation, establishing the criminal responsibility of the suppliers, clients and intermediaries in prostitution, traffic and infant pornography, involving the possession of infant pornography material; to guarantee infant victims remain exonerated from all guilt, before the eventuality they might be punished as criminals; to establish legislation and public policies to protect children from this practice; to reinforce communication and cooperation among the authorities in charge of the enforcement of the law, with NGOs and international organizations in order to struggle against this calamity.
Likewise, when it comes to the sex tourism issue, they have committed to develop and apply legal measures in order to consider as crimes the acts committed by the citizens of the countries of origin against children of the foreign countries (extraterritorial criminal laws) and to mobilize the business sector, involving the tourism industry, against the use of their networks and institutions for the sexual exploitation of children; also to promote extradition and other legal covenants to guarantee for the responsible suspects of these crimes in the destination country be processed either in their origin or destination country.
2) Second World Congress against Commercial Sexual Exploitation of Children (Yokohama, 2001): this Congress has raised the World Commitment of Yokohama, the States renewed their commitment claimed in the Declaration and Action Program of Stockholm, specially committing themselves to take proper measures to face the use of new technologies, particularly regarding infant pornography in Internet.
3) Third World Congress against Commercial Sexual Exploitation of Children (Rio de Janeiro, 2008): after it ended, the Pact of Rio de Janeiro was approved to Prevent and Eliminate the Sexual Exploitation of Children and Adolescents. Nevertheless, this Pact enunciates some advances at world level; it signals some deficiencies in several States, as for instance, that laws do not define or adequately penalize the different forms of sexual exploitation of children according to international guidelines; that the lack of research and judgment has to do, in some cases, to the lack of regulation on extradition, judicial assistance or to the lack of rules on extraterritorial jurisdiction, as well as that the right of children to express their opinion in every judicial and administrative proceedings is not always acknowledged.

Legislative Proposals

Part One
Draft Bills in the National Chamber of Deputies
2006. Parliamentary Procedure Nº97 (07/21/06) File: 4126-D-2006. Initiated in Deputies. Signing parties: Sartori, Diego Horacio.

Annexation of art. 125 ter to the Criminal Code (tourism companies that promote or facilitate minor prostitution)

This project envisages a modification inside chapter III (crimes against sexual integrity); title III, Book Two of the Criminal Code, by means of the incorporation of art. 125 ter, written as follows:
“Tourism Companies such as travel agencies, circuit guides, hoteliers, airways, carriers, and agents related to the activities mentioned, who promote or facilitate the prostitution of underage persons, shall be sanctioned with absolute disability of their license, plus a fine, which in all cases shall be fixed according to the circumstances of the case, and the share capital of the company committing the above mentioned crime.”

Among its fundamentals it can be highlighted the consideration that child prostitution related to tourism is in fair rise in our country, introducing a very complex situation since there are several factors intervening, being it a task very difficult to eradicate. There are indicators showing that the favorable currency exchange makes an attractive aspect for which our country seems to have positioned at a high rank in the road to infant sexual tourism, aggravated by poverty and social exclusion to encourage this business.
In several countries there are severe laws against sexual abuse of minors and these citizens’ acts are condemned even when they practice them in foreign countries where they are not forbidden. In Central America, persons dedicated to recruiting underage persons for sex labor are prosecuted; they usually offer the service to tourists who come from the USA. The purchase of the service is not penalized but rather the person who offers it; extending the issue to several countries, as to whether what should be considered illegal is the selling of services or their acquisition.
It is worth mentioning that this increasing exploitation also has its origin not only in the demand from pederast tourists, who seek pleasure in children, but in that it carries with it the trust that in a child there will be less probability of getting contagious diseases or AIDS. The younger a child is introduced into prostitution, the greater the physical and psychical damages.
According to international and national agencies reports, they warn on the growth of this sexual tourism practice in our country, with special incidence in Iguaçu, taking advantage of the touristic infrastructure of Cataratas and the triple Frontier, but also spread into other provinces as well as in Capital Federal.
The degree of participation of travel agencies, tour organizers and hotels, who use implicit or explicit advertising, showing the cities where child prostitution is extended via internet, manifests a concealed way privileged in travel agencies to win adepts. Laws must sanction the whole operative chain that sells tourism packages with sexual aims, or that these should happen later.[16]

2006. Parliamentary Procedure Nº170 (11/09/06) File: 6748-D-2006. Initiated in Deputies. Signing parties: Bianco, Lía Fabiola; Iturreta, Miguel Ángel; Bosch de Sartori, Irene.
Prohibition on the promotion of touristic packages including children and adolescents prostitution or sexual exploitation. Annex I: Code of Conduct for the prevention of sexual trade of children.

It establishes that the provider of tourism services mentioned in art.1 of Law 18.829 and other physical or juridical persons, who organize national and international tourism, are not allowed to offer in their tourism packages, either explicit or implicit, plans or programs including sexual exploitation or prostitution of children and adolescents.
It contemplates that the National Secretary of Tourism be the institution enforcing this law, who, with the aim to prevent and denunciate sexual abuse or exploitation of children, shall examine and watch the providers of touristic services above mentioned. As well as it shall regulate and watch the fulfillment of the Code of Conduct established in the Annexation I to this Law, to which all tourism services providers and other physical or juridical persons who might organize national and international tourism must adhere. It establishes fines ranging from $10,000 to 1,500,000 and/or suspension, cancellation of license and closing of premises, depending on the severity of the infraction, without prejudice to the sanctions contemplated in Law 18.829, when some of the following behaviors take place:
- To report and coordinate visits to places providing sexual services with children and underage adolescents
- To advertise sexual touristic services with underage persons
- To allow the entrance of children and adolescents into bars, similar businesses and other tourism premises with prostitution or sexual abuse purposes
- To violate the established regulation in the Code of Conduct for the Prevention of the Sexual Trafficking of Children
It contemplates that the money collected through fines be allotted to the Federal Council of Childhood, Adolescence and Family, to finance activities or programs for the Prevention and eradication of the Exploitation sexual Tourism and Prostitution of Children.

Annexation I on its part, establishes that the Code of Conduct for the Prevention of Sexual Trafficking in Children, setting certain parameters of ethical behavior –in consonance with the National Constitution, International Instruments of Human Rights and the Convention for the Rights of Children –that companies, persons and services, direct or indirectly linked with the tourism industry, must adopt regarding the struggle against the infant-juvenile sexual exploitation. Among the obligations established for these subjects, we can find:
- Taking measures to avoid dependent or intermediary laborers offering sexual contact with underage
- Developing ethical company policies against any form of infant-juvenile sexual exploitation
- Reporting, sensitizing and orienting on the terms agreed in this Code and the established by the national legislation regarding the prohibition of infant sexual tourism
- Acting against any act shaping sexual exploitation of children and adolescents, denouncing the suspicious acts and informing to their superiors and public authorities on what persons are involved in such behaviors
- Establishing clauses which explicitly declare the rejection to any form of sexual exploitation of children in the contracts with the different areas of hotels, agencies and other providers of tourism services
- Disavowing any advertisement with erotic character related to tourism
- Training themselves and public officials, by means of courses, conferences, etc., on everything referred to this Code and on the rights of children and adolescents, the consequences produced by the sexual exploitation of children, the punishments determined for acts of corruption and infant prostitution, national and international campaigns related to infant sexual tourism
Likewise, it contemplates that the persons in charge of hotels must act with special celerity in their commercial relationships with the different areas of the tourist activity so that they do not back persons or companies involved in seduction or sexual abuse of children and adolescents.
In the elaboration of this contract, the company must advertise that they are actively dedicated to the protection of children and adolescents; as well as that their sexual exploitation is a crime and that sexual contact with them is forbidden in their premises.
Finally, it contemplates for the physical and juridical persons who adhere to it, a duty of divulgation of the contents of this Code, as well as the ideas of rejection of the sexual exploitation of children by means of signs, guides, brochures, passages, internet pages, etc. They must also cooperate in the development and application of a process of evaluation and monitoring of the instrument, favoring its permanent updating.

2007. Parliamentary Procedure Nº20 (03/28/07) File: 1088-D-2007. Initiated in Deputies. Signing parties: Iglesias, Roberto Raúl.

Modification of the Criminal Code art.128 (crimes against sexual integrity)
This legislative project proposes to the modification of art.128 of the CC, it being written as follows:
“Any person, who provokes, reveals, finances, offers, trades, distributes or publishes, by any means, pornographic images exhibiting underage persons; any person who organizes live shows with pornographic scenes, in which such minors participate, and any person who finances any of these activities shall be sentenced from 2 to 6 years in prison.
Any person who possesses images of the ones above mentioned shall be sentenced from 6 months to 4 years in prison.
Any person giving access to pornographic shows or providing with pornographic material to children under 14 years old shall be sentenced form 1 month to 3 years in prison.
In the cases mentioned in the first paragraph the punishment shall be from 10 to 15 years recruitment or imprisonment when any of the following circumstances should combine:
1) Children under 13 are involved
2) Pornographic material representing children who are victims of sexual or physical violence
3) The guilty person should belong to any organization or association, even of a transitory character, dedicated to the production of such activities
4) There should mediate deceit, violence, threat, authority abuse or any other means of intimidation or coercion, as well as if the author should be a parent, relative, tutor or a cohabitant, in charge of their education or tutelage.”

We can point out, among its fundamentals, that our present legislation on this issue leaves some vacuum which allows the acting of those who dedicate themselves to the interchange of pornographic material, since the sanction regulation only reprimands those who produce, publish and distribute, unlike those possessing such infant pornographic material.

From the analysis of art.128 of the CC we can differentiate three criminal types:
- That who produces or publishes pornographic images exhibiting underage persons and that who organizes live shows with pornographic scenes in which they participate;
- That who distributes such images;
- That who facilitates the access for children under 14 to pornographic shows, or provides them with pornographic material.”

In view of this, and in order not to leave any legal vacuum, it remains necessary to also incorporate as proscribed behaviors, the possession of such material, meaning the very possession with no intention of distribution or trading it, since, otherwise, there would not be consumption, business networks would not exist and by consequence, none of the financing of any of the related activities, either.
Likewise, fines corresponding to the mentioned crimes are raised, and several cases by which the punishable type is aggravated are incorporated.
This project emphasizes that infant pornography is, together with its spreading via internet,
a transnational crime, linked to infant sexual tourism and prostitution, trafficking in children and women or other forms of sexual abuse of minors.

2007. Parliamentary Procedure Nº78 (06/27/2007) File: 3143-D-2007. Initiated in Deputies. Signing parties: Ingram, Roddy Ernesto.

Prevention of sexual exploitation of children and adolescents in tourism

The object of this law consists of taking measures to avoid and eradicate the sexual exploitation of children and adolescents in tourism, prescribing that the physical or juridical persons who carry out the activities included in the Annexation I: “Activities under the uniform international classification of the tourism activities of the WTO” to law 25.997 – National Law of Tourism – must report to their clients the legal consequences of crimes against the sexual integrity of children and adolescents, included in title III of book two of the National Criminal Code.
It prescribes that the enforcement bodies shall be the National Secretary of Tourism and it shall exercise its faculties of supervision and inspection, consulting and coordinating with the Federal Council for Tourism.
It shall supervise and examine the activities of tourism promotion in order to prevent and denunciate cases of prostitution, sexual abuse and exploitation of children, defined as crimes against the sexual integrity, they should know of. In this sense it establishes that it shall:
- Set rugulations in agreement with what is established by the Declaration of the WTO on prevention of the organized sexual tourism
- Advertise and promote the “Code of Conduct for the protection of children from sexual exploitation in tourism and in the travel industry”, approved by the WTO and UNICEF
- Invite physical and juridical persons involved in the mentioned activities to adhere to the referred Code of Conduct
- Keep record of the persons adhered to the Code of Conduct, gather information provided by them in agreement with code
- Set agreements with governmental and non-governmental organizations to guarantee the fulfillment of this Code of Conduct
It is expected that those not fulfilling the established duty of information will be fined up to $5,000, and in case of recidivism the fine shall be raised up to $20,000, affecting the sum resulting from the application of fines on the financing of control programs and prevention of sexual exploitation.

2007. Parliamentary Procedure Nº104 (08/15/07) File: 4039-D-2007. Initiated in Deputies. Signing parties: Arnold, Eduardo Ariel; Lusquiños, Luis Bernardo; Leguizamón, Aníbal Ernesto; Marino, Adriana; Sarghini, Jorge; Cassese, Marina; Pinedo, Federico; Vanossi, Jorge Reinaldo.

Criminal Code: incorporation of art. 125 bis (sexual tourism crime)

This legislative project contemplates the definition of sexual tourism crime, envisaging the incorporation of a last paragraph to art.125 bis of the CC, stating that:

“Whenever there are native or foreigner physical or juridical persons intermediating in the perpetration of a crime, the physical persons and participating members of the social administration body shall deserve the punishments contemplated in this article in the capacity of author.”

Among its fundamentals, it worth mentioning the concern for the situation of infancy in this country and the consideration that almost 50% of the population is under the line of poverty, not having their basic needs satisfied. This is considered a structural situation for its magnitude, since the present macroeconomic state does not seem encouraging for the stability of family nucleuses increasingly involving kids, who consequently become part of the chain of abuse, violating thus the most basic rights of infancy, by means of physical, psychological violence or both, often using children as a means of survival for the family group or simply to get economic benefits, for the price of their own physical or psychological integrity. It is claimed that, unfortunately, the criminal sanction may not seem effective enough, since it neither fights the causes nor gives solutions for the needs. But the threat of the use of power against all active or passive participants in the abuse of children constitutes a dissuasive element which allows to attack on the direct consequences generating such situation.[17]
In this sense, the mechanism under infant prostitution sharpens when it is used as aggregated value in the trading in products, involving other persons, from the hotel manager who consents, to the agency who promotes, where the minor is used as wheel to a gear whose only aim is to make profit, directly or indirectly, out of infant abuse and violence.


2008. Parliamentary Procedure Nº100 (08/14/08) File: 4250-D-2008. Initiated in Deputies. Signing parties: Gil Lozano, Claudia; Alcuaz, Horacio; Carca, Elisa; Pérez, Adrián; Reyes, María Fernanda.


Awareness and information system on the prohibition of sexual tourism


The object of this law is to inform and raise awareness on the prohibition of the sexual tourism in Argentina.
It prescribes that in all long distance transport terminals (air, terrestrial, railroad and fluvial, as well as taxi companies, car rental agencies, underground lines heads and interurban trains and in their wagons, there must be a notice, clear and legible, in Spanish as well as in English, which reads “SEXUAL TOURISM IS FORBIDDEN IN ARGENTINA”.
In this sense, it contemplates that this writing shall be on any advertising media that such providers and/or physical and/or juridical persons use as a means to promote their services. The breakers of this law shall be punished with a fine worth the 15% of their last annual income, license suspension and/or company closure, until the infraction detected is regularized.
Such sanctions shall apply with a previous abstract of judgment according to proceedings prescribed by Law 18.829. And the amount collected from the fines will be destined for the National Program for Prevention and Eradication of the Trade in Persons and aid to their Victims”, created by Decree 1281/07 or for whatever program replaces it in the future, and to the National Secretary of Childhood, Adolescence and Family or for the governmental body replacing it in the future.
As far as it is concerned, the National Secretary of Tourism and Sports or the institution replacing it in the future is defined as the enforcement body, in order to prevent and denounce sexual tourism; it must examine and watch physical or juridical persons, cited in art. 2 and 3 of the project.


It stands out, among its foundamentals that Argentina is becoming a country intensely demanded for the development of sexual tourism, or at least, this situation is gaining public notice. At the same time, regions with greater vulnerability are laying bare for the recruiting of children and adolescents, evidencing the close ties among sexual tourism, trade of persons and sexual exploitation, as complementing businesses.[18]
It adds, in this sense, that international obligations assumed by our country as of the subscription of “Protocol of Palermo” have lead to the sanction of Law 26.364 known as the “Law on the Trade in Persons”. Nevertheless, it points out that this law is insufficient in several senses, since it excludes sexual tourism as part of the definitions of exploitation with trade aims (art. 4), it does not hinder the punishment of its precursors and persons responsible due to complementarities supra mentioned.
So, insofar as the WTO, body our country is a member of since 1975, has settled the creation of a Code of Ethics in 1999 to prevent sexual exploitation in tourism. This empowers and, in a certain way, compels Argentina to make campaigns for the prevention and eradication of this activity.
Thus, this project is oriented to warn tourists and citizens in general on the prohibition of sexual tourism in national territory, on the administrative and penal consequences its involvement might bring as well as for those physical or juridical persons that, in relation to the activity, avoid exhibiting the notice in the terms established by this law.






2008. Parliamentary Procedure Nº149 (10/23/08) File: 5984-D2008. Initiated in Deputies. Signing parties: Morante, Antonio; Morejón, Manuel. [19]


Prevention of the sexual exploitation of children and adolescents in tourism


This legislative project aims at taking informative and preventive measures on the prohibition and the consequences of the sexual exploitation of children and adolescents, as well as the trade in persons in Argentinean territory, in transport terminals, in public tourism offices and in means of transport.
Among its regulations it prescribes the obligation to exhibit the clear and legible notice in a visible place. It must be in Spanish, English and Portuguese, and read: “THE SEXUAL EXPLOITATION OF CHILDREN AND ADOLESCENTS, AND THE TRADE IN PERSONS IN ARGENTINA IS A CRIME SEVERELY PUNISHED”.
It contemplates that it be implemented in national or international airports, port and terrestrial terminals, means of public transport, frontier passages, tourism public offices and official media of promotion of the country.
As far as it is concerned, as an enforcement authority at the Ministry of Justice, Security and Human Rights of the Nation, it can enlarge the supra mentioned places, according to the strategic needs of the corresponding area and establishing the above mentioned notice.
It is worth mentioning that among the foundations of this draft bill is the prevention of sexual tourism of children and adolescents considered as the exploitation of minors by tourists, involving complicity, by direct action or omission, of tourism service providers, or anyone intervening in the commercialization chain of tourism services, apart from the traditional procuring, with sexual aims.
In this sense, it is considered that the promotion of this sort of activities ranges from the sale of tourism packages offered abroad, to the direct contact with the victims in the destination place. In the first case, apart from the usual services such as tickets, food, accommodation and tour, the sex of the partner can also be chosen.
Considering that in the world 2 million children are potential victims of this modality of tourism; and that AIDS and its fear of contagion drives likewise thousands of “customers” to believe the risk diminishes with the younger.[20]
Insofar as the sexual exploitation of children and adolescents is not divulged in the media, and whenever any information transcends, often uncertain or incomplete, it considers urgent to take measures in order to fit in the international regulations on the subject matter, since these crimes framed in the orbit of tourism exceed the countries borders demanding more protection. [21]


Parliamentary Procedure Nº47 (05/14/09) File: 2356-D-2009. Initiated in Deputies. Signing parties: Areta, María Josefa; Storni, Silvia.


Prohibition on the admission of underage persons to places offering lodging


It consists of regulating the entrance of children and underage adolescents – when they are not accompanied or expressly authorized by their parents, tutors, guardians or legal supervisors -, into places offering lodging service, such as hotels, apart hotels, motels, hostels, residencies, lodging houses and/or any other place providing any kind of lodging services.

- It prescribes that for the particular case of motels/hostels or the like, its entrance and lodging is expressly forbidden.
- All houses providing lodging services have to require, from the person registering with children or underage persons, documentation crediting their filial bonds or written authorization by their parents or legal tutors. This authorization shall have to account for the time the child should be lodged, and it must be certified by a notary public or competent authority.
- It contemplates that every place keeps records with numbered pages and photocopies of the supra referred documentation, it should also register the domicile of the minor; all this shall be exhibited whenever the competent authority demands it.
- It orders the exhibition of notices in Spanish, English and Portuguese, of the current disposition, together with phone numbers where to denounce the abuse of children, warning on the punishment of the providing or cover-up of these actions.
- For the non-fulfillment of these dispositions, it contemplates sanctions as:
o Fines up to 100,000 pesos
o Closing down of premises and/or suspension of permit or authorization to operate for a term up to 4 years
o Cancelling of authorization to operate of definitive closing down of premises; all this without prejudice to the corresponding criminal responsibilities.[22]




















Part two
Draft bills in the National Senators Chamber



2003. Draft Bill 121. File Nº324/03. Perceval. María Cristina. On prevention of sexual tourism of children and adolescents.

ARTICLE 1º. - The current law aims at taking measures to prevent and eradicate the sexual exploitation of children and adolescents in tourism.
ARTICLE 2º. – By children and adolescents, contemplated in art. 1º, it is understood all persons under 18 years old.
ARTICLE 3º. – The physical or juridical persons who carry out the activities contemplated in article 1º of Law 18.829, in the national or international scope, any national or international means of transport, hotels and lodging houses, bars, cafés and restaurants, must inform their clients on the legal consequences of exploitation and sexual abuse of children and adolescents contemplated in Title III of the Second Book of the Criminal Code of the Nation. The manner in which this information should be provided will be managed by the authority competent in each of the subjects mentioned in the first paragraph.
ARTICLE 4º. – The National Secretary of Tourism and the corresponding competent authorities or institutions, according to the subject in each jurisdiction, will be in charge of enforcing the current law. In compliance with the law, they shall supervise and examine the activities of touristic promotion in order to prevent and denounce prostitution, sexual abuse or exploitation of children and adolescents within the scope of the current law and as defined in the Title III, book II of the Criminal Code of the Nation. Likewise, juridical and physical persons breaking the dispositions of the current law must be denounced.
The enforcement body shall exercise the power of supervision and examination together and in coordination with the provincial governments, of Ciudad Autónoma of Buenos Aires and the different jurisdictions.
ARTICLE 5º. – The Secretary of Tourism of the National Presidency shall have to draw up a code of conduct within A HUNDRED EIGHTY(180) days this law comes into force, with respect towards what has been established by the Declaration of the WTO on the prevention of the Organized Sexual Tourism (El Cairo, 1995), which shall be strictly complied by the physical or juridical persons mentioned in article 3º of the current law.
ARTICLE 6º. – The enforcement body shall impose a fine up to FIVE THOUSAND PESOS ($5,000) on to the physical or juridical persons mentioned in art. 3º who do not comply with the current law. Sanctions shall be applied by means of the procedure established in the present regulation.
ARTICLE 7º. – The corresponding enforcement body shall specifically affect the amounts resulting from the imposing of the fines contemplated in this law, on the financing of programs of control and prevention of the sexual exploitation of infants.

2005. Draft Bill 125. File Nº3339/05 Isidori, Amanda Mercedes. On the prevention of the defined sexual tourism.

It proposes an amendment to the National Law of Tourism, including art. 37 bis on Sexual Tourism, written as follows: “The enforcement body of the current law, in coordination with the Federal Council for Tourism, the Argentinean Chamber of Tourism, the competent public bodies and other involved sectors, shall issue and follow a policy of prevention of the defined “sexual tourism”, aiming at protecting the vulnerable citizens, especially children and adolescents, from the sexual exploitation offered as part of the national and/or international tourism services.
The enforcement body of the current law shall set a mechanism of reception of denunciations regarding the offering of sexual tourism services, which shall be derived to the competent authority. In case they do not do it, the responsible authorities shall incur in breach of duty of public officer.
Without prejudice for other corresponding actions, the enforcement authority shall impose sanctions on the tourism providers who should have offered sexual tourism services”.


2006. Draft Bill 124. File Nº1789/06 Basualdo, Roberto Gustavo. By which the National Program on the Prevention of Infant Sexual Tourism is created.


This law aims at the creation of the National Program on the Prevention of Infant Sexual Tourism in the whole national territory. We can highlight among its objectives:
- Contributing to the eradication of all sorts of infant sexual abuse
- Issuing and promoting juridical, legislative, political, administrative and cultural measures which foster the protection of the rights of children before any form of sexual exploitation
- Impelling to cooperation among the countries receiving and delivering tourism, in order to eradicate infant sexual tourism
- Raising awareness on citizens, governmental and non-governmental organisms on the issue, in order to promote policies to face these situations
- Broadcasting campaigns to fight the phenomenon as well as promoting its denunciation
- Supporting the development of institutional mechanisms aimed at the prevention and attention of the diverse forms of sexual exploitation of minors
- Impelling the development of studies and research on this issue
- Supporting preventive and aiding actions developed by the NGOs of the civil partnership
- Implementing a documentation and data base center regarding the issue of infant sexual tourism, to which other related organisms can access and add information


2007. Draft Bill 125. File Nº2587/07 Perceval, María Cristina. Biased to the preservation and punishment of the exploitation of minors in the defined sexual tourism frame.


This draft bill aims at taking measures aimed at preventing and punishing the exploitation of children and adolescents in tourism. In this sense, it defines sexual exploitation of minors in tourism as the organization of travels using the structures and networks of tourism, with the purpose of providing national and foreign tourists with the exploitation of children and adolescents from the destination place. Likewise, it establishes for the operators of tourism services the duty of informing on the legal consequences of this exploitation.

2008/2010 Reproduction draft bill 126. It reproduces the draft bill by which the National Program for the Prevention of Infant Sexual tourism is created. Draft Bill. File: 348/2010 Basualdo, Roberto.

This draft bill repeats the one described in item 3.












Role of Tourism
In the SFPST[23] as well as in law 25.997 it is clearly expressed that one of the principles ruling the activity is constituted by the “Sustainable Tourism”. Then, it is about encouraging a tourism development in harmony with the cultural and natural resources in order to guarantee its benefits for the current community as well as for the future generations; and this applied to the environment, the community and the economy. So child protection clearly assumes this principle which the current Ministry of Tourism has made theirs since 2004.
Due to the possibilities and capabilities of the sector to face this issue and without prejudice to inter-ministerial articulations with specific organisms, there have been two priority approaches: in the institutional aspect of the WTO and in the conceptual aspect of the CSR.
In 1997 the WTO created the Task Force to Protect Children from the Sexual Exploitation in Tourism – this group is presently lead by the very WTO who keeps biannual meetings, March-ITB, Berlin, Nov.-WTM, London. Argentina has representation in the Executive Committee leading the governmental area for America. And an identical position in the Regional Task Force spontaneously born at Brazil´s request and presently lead by Ecuador.
The program lead by the Ministry has the fundamental objective of implementing actions which protect and promote the Rights of Children and Adolescents in the scope of Tourism, and the prevention to avoid any direct or indirect connection within the Touristic Sector in situations of damaging of the Rights of Infancy in general and the labor or sexual Infant Exploitation in particular. Briefly said: Training and Awareness Raising.
On August 19th 2008 the then Secretary of Tourism[24] became the first public body in the world who subscribed The Code[25]. A very brief instrument of adhesion inspired in the Code of Ethics of the WTO and consisting of six basic items attempting to link the organizational strategy and view to the good practices for the protection of minors through criteria of social responsibility. The AFEET[26], ECPAT[27], SAVE THE CHILDREN[28] and UNICEF[29] participated in the committee of enforcement.
Nevertheless, the international system turned out to be hard to apply thus methodologically formulated, that is why in 2009 the Ministry reformulated the criteria to adapt them to the then national reality and began a long task of Argentinean institutions and companies subscription to a “National Code of Conduct”
NATIONAL CODE OF CONDUCT
1) To establish an ethical policy regarding the protection of the Rights of children and adolescents.
2) To educate and train company staff
3) To introduce a clause in the contracts with providers which informs on the rejection of the commercial sexual exploitation of children, and the adhesion to the Code of Conduct for the protection of the Rights of children and adolescents as a tool of company social responsibility.
4) To provide travelers with information on the campaign of prevention of the commercial sexual exploitation of children in travels and tourism, by means of catalogues, brochures, films in the airplane, announcements on TV, labels on the tickets, etc. according to the outlines by the National State regarding the issues of children and adolescents.
5) To provide the local agents with “key” information of the place the perform their activity
6) To evaluate and issue an annual report on the actions developed to implement these criteria

By way of conclusion
“Jesus said: let the Little children come tome,
and do not Hinder them,
for the kingdom of heaven belongs to such as these.”
Mathew 19:14

If, as we said at the beginning, the apparent problem is the exploitation of man by men[30]; in its cruelest version which is the sexual exploitation of children[31], it is not an exaggeration to think we are facing another variant of what Jean Paul II defined as “culture of Death”, since that is what it is: a sustained and systematic infanticide, where the most vulnerable (minors) have to put up with an endless number of crimes ranging from reduction to slavery, physical, psychical and moral damaging, abuse, rape to, finally, death.[32]

Prolonging another work, Eva Giberti claims that between writing an article on the problem of infant sexual exploitation and helping an underage victim there is a vacuum the imagination does not manage to represent[33]. Bearing this in mind, do we give our possible contribution for the cause of the most defenseless.





[1] www.unhchr.ch/
[2] Protection of the Rights of Children and Adolescents facing labor and sexual exploitation, trade, trafficking and sale. Ministry of Justice and Human Rights. March 2007
[3] See the annual report 2009 of the OTAERTP (Office of Treasurer of Aid to Extortive Recruitment and Trade of People) dependent to the Ministry Public Treasury, called Commercial, Sexual Exploitation, and other forms of Violence or Sex Abuse on children and Adolescents.
[4] Corporate Social Responsibility
[5] International Labor Organization
[6] World Tourism Organization
[7] According to Art. 1 of the Convention on the Rights of the Child
[8] Child Sexual Abuse
[9] Commercial Sexual Exploitation of Children
[10] Commercial Sexual Exploitation of Children and Adolescents
[11] See “Programación de los Derechos de la Infancia” by Gerardo Sauri Suarez in the work piece “Explotación Sexual Comercial Infantil “ compiled by Raquel Pastor Escobar and Raquel Alonso Nogueira UBIJUS Mexico D.F. 2008
[12] See “La dimensión política de la ley 26.061 de Laura Cristina Musa en Protección integral de Derechos de Niñas, Niños y Adolescentes”. Emilio García Méndez compiler Fundación Sur, Ediciones del Puerto Buenos Aires 2008
[13] See “La protección a la infancia como derecho público provincial” Coordinator Mary Beloff - Buenos Aires Ad-Hoc Editorial 2008
[14] The FCCAF was created by Law 26.061 and regulated by decree 416 on April 17th 2006. It went on duty on December 15th 2006.
[15] See http://www.desarrollosocial.gov.ar/pdf/InformeONU.pdf

[16] Nevertheless this legislative Project is still being processed, and although up to this date sexual tourism or sexual tourism of children has not been defined as an autonomous offence, Law 26.364 for the Prevention and y the Sanction of the Trade in Persons and Aid to their Victims, passed on April 9th de 2008, introduced modifications on the definition of crimes against sexual integrity.

[17] It is mentioned in the Project that Latin America, as well as other Asian countries as Thailand or Ceylon, has become a tourist destination for sexual aims. Brazil, in order to avoid crime has issued an unusual hard criminal law, but effective enough to fight infant prostitution; and above all to penalize the activities of hose who organize and promote crimes against infancy with a commercial character.

[18] It is worth to mention that the ITO considers that approximately 3.500 children and adolescents who live in the Triple Frontier are involved in the different ways of sexual exploitation, work in the streets –especially in the whole Paso Fronterizo de la Amistad- and they are recruited by the exploitation networks which make them work in cabarets, brothels, tourism hotels and discotheques of the area. In the same direction is the report given by Clelia Ávila, legislator from Chaco, who claims that the recruitment for the supply of sexual tourism comes 90% from the provinces of Chaco, Formosa, Corrientes and Misiones, where children, adolescents and grown ups are abducted for sexual exploitation in other places, such as the south of the country or in Capital Federal.
[19] This very legislative Project is also under File 0098-D-2010.
[20] According to data extracted from the foundations, it is statistically considered that in Latin America only, in 1999, Costa Rica received 5000 tourists with specific aims of infant exploitation, tourists from the States being 80% of the arrests related to sexual tourism of children. This matter enslaves millions of children in the whole world: 500,000 in India, 100,000 in Thailand, 100,000 in Philippines, 100,000 in Taiwan, 500.000 in Brazil, 300,000 in USA.
[21] Among the foundations of this project, it is properly mentioned, that the destinations of the sexual tourism of children change as fast as protection measures are taken in a country. So the people involved in taking these services chose a different country. For instance: Thailand began to commit to a policy of protection of their minors and the abusers who traditionally chose this destination, began to travel to Cambodia (world statistics from Costa Rica, India, Thailand, Philippines, Taiwan, Brazil, USA)


[22] This draft bill has relied on the collaboration of the NGO Civil Partnership: Prevention of Abuse and Ill-treatment of Minors and the Handicapped, with the support of Alejandro Molina, ex civil judge, Defender of Minors in the National Chamber regarding the Civil, the Commercial and Labor, ex President of the National Board of Minority and Family, who have introduced a byelaw in October 2008 in the city council of San Isidro, Bs. As. Likewise, according to the legislative project, for its elaboration there have been contributions from the team Área de Género and Human Rights of Women of the Institute of Human Rights of the Faculty of Law and Social Sciences of the Universidad Nacional de La Plata.
[23] Strategical Federal Plan for Sustainable Tourism issued in 2004/05 and with scope expectancy towards 2016
[24] The change of structure from Secretary into Ministry realized by means of Decree 919 of 2010
[25] www.thecode.org nowadays The Code is a NGO born from a project of ECPAT(End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes)
[26] www.afeetargentina.org.ar Asociación Femenina de Ejecutivas de Empresas Turísticas
[27] www.ecpat.net
[28] www.savethechildren.org.ar
[29] www.unicef.org/spanish/
[30] See on the analysis of the victim´s situation the work “Delitos Sexuales sobre Menores” by Pedro A. Gutierrez. Ediciones La Rocca. Bs. As. 2007
[31] Monni Piero, El Archipiélago de la Vergüenza, España Editorial BAC 2004
[32] First World Congress against the commercial sexual exploitation of children – Declaration Nº 9 Stockholm, Sweden from August 27th to 31th 1996 - http://www.csecworldcongress.org/
[33] Prostitución Infantil, tráfico de menores y turismo sexual. Luis G. Blanco Bs. As. Editorial Ad Hoc 2008